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The Egyptian Organization for Human Rights

The Egyptian Organization for Human Rights calls for the re-trial of Dr. Ageza after his deportation to Egypt

Cairo: 14/2/2002

EOHR calls the Egyptian authorities to re-try Dr.Ahmed Hussein Ageeza who is imprisoned in " Tora" Prison to serve a verdict issued in absentia in case no. 8 of 1998 known as " The Returnees from Albania".

Ageza left Egypt in 1992 and moved to many Arab countries before he resided in Sweden where he asked for a political asylum. The Swedish government arrested him while he was going to his flat on 18/12/2001 after the Swedish government held an agreement with the Egyptian authority not to torture him and to re-try him. However, after his deportation, he was put in unknown place for one month and EOHR addressed the Egyptian authorities to reveal his whereabouts. Finally his family succeeded in knowing where he was and visited him in Mazrae't Tora Prison on 24/1/2002. His family noticed that he is so weak and he lost weight as well as he has slide disc and stomach ulcer. It is worth mentioning that Ageza had received a verdict in absentia to be imprisoned for 25 years with hard labor in case no.8 of 1998 known as " the Returnees from Albania". The first defendant to the thirty five defendant were charged to be affiliated to an illegal group that aimed at disturbing the public order as well as suspending the implementation of the provision of law and the constitution. Further more, one of the methods used by this group to achieve their goal is terrorism. Moreover, they were charged with cooperating together to commit crimes such as intentional murder as well as having weapons, ammunition and bombs which are used to upset the security, peace and to commit acts of sabotage. The court issued its ruling after the hearing of the testimony of the defendants and reviewing State Security Prosecution's reports in which the defendant no. 36 and no. 58 admitted of the above mentioned charges. Ageza was notified with this verdict and signed it when he was imprisoned under extreme guarded Tora Prison after his forcibly deportation to Egypt on 22/1/2001.

According to Article 111 of the military act no.25 of 1996 " the office of military challenges is the one that examines the appeals to the re-trial and the review of the military courts' verdicts stated in the law".

Article 113 states the reasons of the accepting of the re-trial and the review of the ruling which are :

First: If the verdict is in conflict with the law or is incorrectly implemented or interpreted.

Second: IF there is a fundamental defect in the procedures, which results in sweeping away the right of the defendant

In this regard, EOHR presented an appeal to review the case and to re-try the defendant according to the following:

The incorrect interpretation and implementation of the law:

Ageza' s defense of said before the court that the lawsuit should not be accepted because the defendant can not be referred to the court before being interrogated. It is worth noting that the criminal procedure code states that the accused persons in criminal acts shall not be referred to the court before being interrogated. However, in page 42 of the court verdict the court refused the above-mentioned view of the defense due to article 3 of the Penal Code although EOHR realized that article 3 of the Penal Code states that:

" if an Egyptian citizen committed what is an actual misdemeanor or a felony in another country, he must be tried when he comes back to Egypt in the case that the act he did is a punishable crime in the law of the country where he committed the crime." The reason behind this article is to prevent those Egyptians who committed a crime in another country from escaping punishment if they flee and return to Egypt after committing the crime and before the trial. Without this article, the Egyptian citizen who fled and returned to Egypt can not be deport by the Egyptian authority to the country where he committed the crime because no citizen may be deported from the country or prevented from returning to it due to article 51 of the Egyptian Constitution ( Dr. Salama Ma'moon Penal Code- General Section- page 69 )

Thus, one of the main conditions to implement this law is the returning of the citizen to Egypt, so, this justifies the intervention of the State because the crime, which is committed in a foreign country, do not upset the public interests of Egypt. Therefore, to implement the law, the citizen must be in the Egyptian territory even for a short time and if he left Egypt after that he can be tried in absentia but if he does not come to Egypt at all, he can not be tried in absentia. It is the same if the citizen comes to Egypt forcibly or voluntarily ( Dr. Salama Ma'moon Penal Code- General Section- page 71 )

So, if the defendant was abroad since 1991 and he did not return to Egypt during this period till he was forcibly deported to Egypt on 18/12/2001. Thus, he can not be tried in absentia because he was not in Egypt when the lawsuit was investigated. If he come to Egypt and left it before the suit was filed, he can not be tried in absentia except in the case he comes to Egypt. ( Dr. Ahmed Fathi Soroor the Penal Code- General Section-Fifth Edition- page 127 )

In this regard, the court incorrectly interpreted and implemented Article 3 of the penal Code, because the defendant has to be tried on his coming to Egypt either if he comes voluntarily or forcibly. Furthermore, the name of the defendant was not mentioned in any armed violence case that took place since 1991 such s the case of " the returnee from Afghanstan" in 1992, the case of "Tala'e El Fath" in 1993 and Case no. 11 in 1993 in concerning the assassination of the Information Minister, case no.6 of year 1993 known the case of Tourism , case no.20 of year 1993 concerning the disturbance of public order, The case of "Tala'e El Fath 2 " of year 1993 and the case of "Tala'e El Fath 4 ". Therefore, this means that there is no specific crime, that was committed by the defendant in the 1990s.

2- The unconstitutionality of article 48 of the penal code, and the necessity of applying the suitable law due to article 5 of the penal code:

IT is clear that according to the court verdict, he was convicted of being a criminal accomplice states in article 48 of the penal code. However, the Supreme Constitutional Court declared the unconstitutionality of this article on 2/6/2001 in case no.114 of the judicial year no. 21. The second paragraph of article 5 of the penal code states that" if a law is issued which makes the crime non-punishable thus the verdict must be terminated. This article came to force in the Egyptian Penal Code in 1937 because the defendant who received a final verdict due o the old law, shall have his verdict canceled because the social body believes that it is useless to implement this verdict. This article is applied in the case if a law is issued which makes the crime non-punishable . (Counselor Mostafa Magdy Harga- Comment on the penal Code- Mahmoud printing house for publishing and distributing- page 62)

As a result of applying the new law that makes the crime non-punishable after the final verdict was issued is as follows:

First: The final verdict shall not be implemented and if it is implemented, the implementation shall be terminated.

- " Is a new law that is in the interest of the defendant is issued after the issuance of a challenged ruling, the cassation court shall automatically implement the new law." ( Challenge no. 17044 of the judicial year 59 session 1994) -

" The Cassation court shall automatically challenge the ruling in the interest of the defendant due to article 35 of law no. 57 /1959 concerning the conditions and procedures of challenging the ruling before the cassation court" ( 17/4/1962 of the judicial year 13, page 365)

Second:" In the case that the crime becomes non-punishable, according to article 5 of the penal code, the challenge shall be accepted and the defendant shall be acquitted"

-Article 25 of law no. 48 of year 1979of the supreme constitutional court, states that the Supreme Constitutional Court is the only body that is responsible for the judicial supervision on the constitutionality of the laws and regulations. In article 49/4-3 of the law stipulated that as a consequence of verdict that makes a law or regulations unconstitutional, the law or the regulation shall not be implemented since the following day of issuing the verdict. Furthermore, if the if the verdict of the unconstitutionality is related to a criminal article, the ruling that condemn an act due to this article shall be terminated. Thus, article 48 of the penal code shall be eliminated from the papers.

EOHR is deeply concerned about the deteriorating health condition of Ageza and it calls for his re-trial due to the Egyptian law and the judicial verdicts. And due to the procedures of the legislative principles which guarantee for the defendant a fair and impartial trial which is states in the International Covenants of Human Rights that becomes a part of the Egyptian Constitutions by virtue of article 151 of the Egyptian Constitution.

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